Md. Faisal Masood and Diya Maheshwari
INTRODUCTION
Hate speech, which is defined as the utterance of derogatory language and the incitement of hatred towards others based on their ethnicity, faith, sex, or sexual preference, remains to be a significant challenge worldwide. While freedom of expression is an integral and fundamental right, it can also lead to false advertising, the exposure of state secrets, incitement of violence. “As Judge Oliver Wendell stated, “freedom of speech shouldn’t involve the right to yell ‘FIRE’ in a crammed theatre”.
The issue of hate speech and its dire consequences is felt worldwide and global bodies have attempted to rectify the situation by enacting and enforcing various laws and sanctions. But as rightly stated by Congresswoman Eleanor Holmes Norton, “it is practically impossible to come up with an anti-speech law that cannot be contorted to prohibit speech that no one intends to prohibit. It has been tried and tested again.
INDIAN LAWS: BALANCING FREE SPEECH AND REASONABLE PROHIBITIONS
Democratic self-government relies on the fundamental requirement of facilitating the exchange of information and opinions between citizens and elected representatives. This exchange serves as a crucial mechanism to shape policies and ensure accountability of public officials. However, restrictions based on specific viewpoints pose a significant threat to the principles of equality which is directed more particularly, to the satisfaction of fundamental categories of human desires and failure to do so will amount to discrimination unless an objective and reasonable justification exists. Such restrictions often succumb to the influence of prevailing majority political forces, targeting those with unpopular or dissenting views, as well as marginalized and minority groups. It is essential to recognize that there exists an inherent “equality of position in the sphere of perspectives”, where the government must ensure equality for all of the perspectives such that each and every one of them get a fair chance of being heard.
In the landmark judgment of Shreya Singhal v. Union of India, “Justice Nariman elucidated the line between discussion, advocacy, and incitement, arguing that even controversial discussion or advocacy is protected under Article 19(1)(a). However, where such discussion or advocacy approaches the threshold of incitement,Article 19(2), which is a restriction, comes into play. These reasonable restrictions include speech that causes public disorder, threatens India’s sovereignty and integrity, or jeopardizes national security and friendly relations with other countries.” While hate speech is not explicitly listed as a reasonable restriction, it might be categorized as being a threat to public disorder etc.
The Indian Penal Code, 1860 (“IPC”) is the primary piece of legislation in India dealing with hate speech. Section 153A of the IPC forbids inciting hatred between various groups on the basis of faith, ethnicity, geographic location, domicile, linguistics, and so forth. Section 295A criminalizes intentional and malevolent conduct meant to incite religious emotions. With regards to the constitutional validity of Section 295A by the Supreme Court in Pravasi Bhalai Sangathan v. Union of India, it was reaffirmed, “that hate speech can disrupt communal harmony and pose a threat to the secular fabric of the nation. It held that hate speech targeting religious sentiments can be curtailed to prevent public disorder and maintain social cohesion.” Additionally, the Code of Criminal Procedure, 1973 and various other state laws also address hate speech in specific contexts.
INDIAN LAWS: CHALLENGES AND CRITICISMS
While the Indian Constitution does not explicitly mention hate speech as a reasonable restriction, the broader categories under which hate speech falls have been used to curb its dissemination. In Ramesh v. Union of India, “the Apex Court emphasized the importance of balancing freedom of speech with the need to maintain social harmony and held that hate speech can have serious repercussions and disrupt communal harmony. While upholding the right to free speech, the court stated that restrictions can be imposed to prevent hateful language that induces acts of violence or fosters animosity among religious communities.” Nonetheless, the term “reasonable” is flexible and subject to interpretation, resulting in disparities in its use. Some critics assert that India’s hate speech laws tend to be extremely liberal or overly harsh, with a lack of clarity and uniformity.
In People’s Union for Civil Liberties & Anr. v. Union of India, the constitutionality of Section 124A of the IPC, which deals with sedition, was addressed. The Apex Court held that solely making provocative speeches or criticizing the government does not constitute sedition unless it incites violence or public disorder. This case reaffirms the importance of drawing a line between protected speech and speech that poses a genuine threat to public order.
Several international human rights instruments address hate speech and strive to protect individuals from its negative consequences. Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), which India has ratified, ensures the right to free expression. In the case of Connick v. Myers, “the United States Supreme Court emphasized that speech addressing public matters occupies the highest position in the hierarchy of freedom of speech and expression. It is accorded special protection due to its vital role in fostering an informed and participatory society.”
HATE SPEECH LAWS AND THEIR EFFECTIVENESS GLOBALLY
Journalist Glenn Greenwald wrote in 2017, “Cases are common in Turkey where civilians have been charged under laws against hate speech for critiquing the authorities or the armed forces.” He also stated that “in the UK, ‘hate speech’ has evolved to incorporate… scathing remarks of UK military fighting in wartime.” Congressman John Lewis has rightly said “The Civil Rights movement would have been a bird without wings if there had been no freedom of speech and no right to dissent.” According to ProPublica’s 2017 investigation of Facebook’s confidential files, “arguably in certain cases, the company’s hate speech standards are favorable to affluent and authorities over grassroots activists and ethnic minorities.” According to ProPublica, such preferential treatment benefits Facebook’s commercial objectives because the company “depends on the nation’s government not to restrict access for their civilians.” Furthermore, according to Professors Louis Greenspan and Cyril Levitt “[t]he rise of France’s National Front party, which was overtly racist under Jean-Marie Le Pen’s leadership,… happened in a nation that had allegedly immunized itself” by “hate speech” legislation. They also claimed that “respectable” racists have acquired political clout in Germany, despite the fact that the country “has a number of the strongest anti-hate laws in the globe.” However, the effectiveness of such laws is a matter of debate. Existing “hate speech” laws in European Union (EU) countries have not effectively curbed incidents of hate speech and discriminatory offences, according to the European Parliament and a UN-commissioned study. Oxford University Professor Timothy Garton Ash in his research also found no correlation between the presence of such legislation and decreased hateful speech or discriminatory conduct. Even in Kenya, where a “hate speech” law was enacted to address intergroup violence, the problem persisted.
Journeying across nations, we encounter captivating tales that shed light on the intricacies of hate speech laws. In France, a thought-provoking example unfolds – the plight of pro-Palestinian activists confronted with legal penalties and fines for advocating the boycott of Israeli goods. This compelling case sheds light on France’s rigorous enforcement of hate speech legislation. While initially intended to combat discrimination, critics contend that these laws can inadvertently stifle political dialogue and suppress the free expression of valid perspectives. In Turkey, the very laws designed to combat hate speech have now been turned into weapons to muzzle dissent and stifle the freedom of expression. Criticism of government officials or the military becomes a risky endeavour, exposing the vulnerability of subjective interpretations. This examples illuminate the challenges of defining hate speech, as laws navigate the delicate balance between curbing genuine harm and potentially stifling controversial but not inherently hateful speech. These diverse experiences beckon us to delve into the complexities and nuances of hate speech legislation, urging us to question the extent to which it can protect society while preserving the invaluable bedrock of free speech.
Furthermore, in India, the realm of meme-making takes an unexpected twist. Amidst the world of political satire, a disheartening reality emerges—a consequence no one desired: arrests. In April 2018, the arrest of a Ranchi man for crafting a meme video mocking the Minister reverberated across the nation, igniting a fiery debate on the boundaries of freedom of speech. This incident serves as just one snapshot among many, as numerous individuals like stand-up comedians, celebrities, etc. found themselves facing legal consequences for memes or social media posts targeting various political leaders. These incidents compel us to delve deeper into the interplay between creative expression, political commentary, and the boundaries that shape the ever-evolving landscape of freedom of speech.
EFFECTIVENESS AND ALTERNATIVES: COUNTER SPEECH
Emerging research beckons us towards an interesting revelation – the power of counter speech in the face of hate speech. Rather than resorting to outright censorship, a more compelling approach reveals itself—responding to hate speech with a chorus of positive messages. How does it work? By fostering education on cultural differences, celebrating diversity, and empowering marginalized communities, counter speech dares to reshape attitudes and confront the very narratives that breed hatred. Through its empowering melodies, counter speech orchestrates a symphony of change, challenging the darkest corners of prejudice and illuminating the path towards a more inclusive and harmonious society. In one of the many such examples, the example of Dani Alves demonstrates the power of counter-speech against hate speech and actions. When an audience member hurled a banana at Dani Alves, a football player from Brazil, another player retaliated by sharing a photo of himself eating a banana with the hashtag #Somostodosmacacos (which means “we are all monkeys” in Spanish). This act of counter-speech gained significant support and helped challenge racist behavior.
CONCLUSION
“Hate speech” legislation can be crafted with varying degrees of specificity and scope, but they always revolve around notions that necessitate subjective judgements, beginning with the notion of “hate” itself. Internationally, conventions and treaties acknowledge that it is the need-of-the-hour for combating hate speech to protect vulnerable groups and promote social harmony. The efficacy of hate speech regulations remains a subject of debate, with advocates championing counter-speech as a potent alternative. Moving forward, we find ourselves at a crossroads where the path to address hate speech demands equilibrium—protecting freedom of expression while mitigating the perils of discriminatory rhetoric. It is crucial to continue the ongoing dialogue on hate speech, taking into account the evolving nature of communication platforms and the potential impact of online hate speech. By fostering an environment that encourages diversity, education, and empathy, societies can work towards making the world more open and accepting whilst respecting the basic principles of free expression and human rights.
The first author is a member of Delhi High Court Bar Association practicing at the Hon’ble High Court of Delhi and the second author is a final year law student from Bharati Vidyapeeth deemed University, Pune
Image Credits: CRASSH
Constitutional Law Society 
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